Jan 8, 2013

Under the ADA, does a basketball team have to accomodate a player’s disabilities?

The Houston Rockets drafted Royce White in the 2012 draft. However, White, who has some mental health issues that give him serious anxiety from flying, has refused to travel with the team. The team tried to assign him to a D-League team, but he refused. Now he is being suspended.

In a recent interview, White suggested that the Rockets are required to accomodate his disability under the ADA.

ROYCE WHITE: Well, there’s two pieces to it. One is that, you know, under ADA [Americans with Disabilities Act] law, anybody who has a disability in the work place, and if your job has over 50 employees, your job is required to accommodate you and the accommodation does need to be reasonable. That is stated in the law. The protocol here is just that, you know, when a medical situation arises, dealing with the mental-health-related symptoms, that a medical professional take the lead on how to move forward. Whether that be not moving at all, whether that be moving slow, whether that be moving at 100 miles an hour. Somebody that’s qualified and trained to give medical advice is the person who is at the lead of that. And I think that’s very logical and sensible. And to allow somebody like Daryl Morey, for example, to take the lead on that situation with having no medical training, is not only illogical but at the bare minimum it’s very unsafe.

Is there any case law about a professional athlete seeking a reasonable accommodation under the ADA?  If the Rockets cut White, could he bring suit under the ADA? It would seem that his refusal to play would be the reason for the suspension, though his refusal to play was based on the team’s inability to accomodate his disability? Would any court hold that it is a reasonable accommodation to allow an NBA player with mental health issues an alternate work schedule (not travelling with the team by plane, only playing home games, telecommuting)? Here are White’s comments on travelling schedules:

ROYCE WHITE: So we said “Hey, OK, listen. How are we going to rectify that?” OK, well, we’re going to allow, well we asked to be allowed to bus to the games that are, you know, close enough. And when I’m on the road, let’s say we flew to Detroit and we had a game in Milwaukee. OK, well, we could bus when we get to Detroit from Milwaukee and if then we have to fly back or if you know, we could drive back. Or, whatever we can do that’s feasible. That whole negotiation took a while to do. A number of reasons. (a) is, who is going to pay for that, and that became an issue. The Rockets finally agreed that it does make sense for them to pick up that cost because travel requirements are something that teams do and first class travel requirements are something that also is in the CBA. So they agreed to that and then then there was also putting it in writing. Putting it in writing was a tough thing and the NBA didn’t want them to do that and then they came back a day later and said that they could do it. And it was a big weird process where again, protocol was obviously absent. There’s no precedent to work off so everybody’s really confused. And we finally got that squared away. And I started off the season, we were traveling, some other things were happening, and then some more stressful situations. I started having migraines and I said, “Hey listen, let’s go back to the protocol now. I mean, let’s, where we at with the protocol?” That’s when it started to get a little tense.

I always wonder about the application of employment laws to professional sports. I mean, what if a female brings suit under Title VII alleging that the NFL refused to consider her because of her gender.

Update: Several commenters on Twitter reminded me of PGA Tour v. Martin, where the Supreme Court held that the ADA applied to the PGA, and they could not deny Casey Martin reasonable accommodations (using a cart).

Justice Scalia was not persuaded in dissent:

Complaints about this case are not “properly directed to Congress,” ante, at 27-28, n. 51. They are properly directed to this Court’s Kafkaesque determination that professional sports organizations, and the fields they rent for their exhibitions, are “places of public accommodation” to the competing athletes, and the athletes themselves “customers” of the organization that pays them; its Alice in Wonderland determination that there are such things as judicially determinable “essential” and “nonessential” rules of a made-up game; and its Animal Farm determination that fairness and the ADA mean that everyone gets to play by individualized rules which will assure that no one’s lack of ability (or at least no one’s lack of ability so pronounced that it amounts to a disability) will be a handicap. The year was 2001, and “everybody was finally equal.” K. Vonnegut, Harrison Bergeron, in Animal Farm and Related Readings 129 (1997).

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Jan 8, 2013

Laughing at the SEC

Today’s arguments in Gabelli v. SEC were quite humorous, as Justices Scalia and Breyer did their standup schtick.

When Justice Breyer asks someone to prove him wrong, he knows they can’t:

All right. Now, you will tell me that I’m wrong by citing some cases that show I’m wrong. And that’s what I’m asking. I want to be told I’m wrong, sort of.


MR. WALL: And I guess what I want to tell you is there aren’t cases out there one way or the other. There aren’t cases endorsing or declining to adopt the discovery rule in the context of fraud or concealment with civil penalty actions —

JUSTICE SCALIA: You’d expect that – you’d expect there to be some cases in a couple of hundred years.

JUSTICE BREYER: No, I haven’t found one.

JUSTICE SCALIA: Fraud is nothing new, for Pete’s sake.

This is the SCOTUS equivalent of a humble brag.

This exchange, with my former FedCourts Prof, and current Assistant SG Jeff Wall, was perfectly timed:

JUSTICE SCALIA: And you will say nonsense in that future case, won’t you?


MR. WALL: That’s — I’ll be as right then as I am now. (Laughter.)


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Jan 8, 2013

My Review of Judge Wilkinson’s Cosmic Constitutional Theory is on Concurring Opinions

You can read it here. Thanks to Dan Solove and the crew for allowing me to post my review.

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Jan 8, 2013

I am now a member of the U.S. Commission on Civil Rights State Advisory Committee for Texas

The U.S. Commission on Civil Rights has State Advisory Committees in all 50 states and the District of Columbia. I have been appointed to Texas’s Committee. I look forward to working on reports that will be submitted to the Commission.

My application form is available here.

Update: My commission letter is here.

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Jan 8, 2013

Reading Law


To Josh Blackman

-With Best regards

Antonin Scalia

Bryan Garner

I can add it to my collection.

making-the-caseNo, I did not pay $600 for the ticket. They had a limited quantity of student tickets available on a first-come, first-serve basis. I think I got to the Kennedy Center at 6:30 a.m. FWIW, the Justice’s signature is nearly identical. I assure you, no unconstitutional autopen was used.



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Jan 8, 2013

SCOTUS Smacks Down 6th Circuit. Again.

Justice Thomas lays the unanimous vertical benchslap in Tibbals v. Carter on Judge Martin’s opinion from the Sixth Circuit.

It’s pretty bad when not even the habeas petitioner seeks to defend the reasoning of the court that rules in hsi favor:

We would address Carter’s arguments in defense of the Sixth Circuit’s decision, but, there are none. Carter’s brief informed us that “[t]his Court need not consider the statutory argument with which the [petitioner’s] brief begins— i.e., that there is no ‘statutory right’ under 18 U. S. C. §4241 to be competent in habeas proceedings.” Brief for Respondent in No. 11–218, p. 15. Apparently, Carter found the Sixth Circuit’s reasoning indefensible. We agree.

Note: I clerked for the 6th Circuit last year, but had no involvement int his case (it was argued and decided before I even arrived at the court).

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Jan 8, 2013

Alito, J., Concurring & Just Saying

Today in LA County Flood Control District v. NRDC, Justice Alito concurred in judgment, without comment. He simply wrote:

JUSTICE ALITO concurs in the judgment.

Justice Ginsburg’s opinion reversing the 9th Circuit was unanimous. Justice Alito did not join that judgment, nor did he give any reason why he did not. Justice Thomas has done this before.

This is the SCOTUS way of communicating, “Just saying.”

H/T Mike Sacks

Update: Kedar Bhatia highlights some examples were Justices have concurred or dissented without an opinion.

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Jan 8, 2013

Representative Sworn Into Congress With a Constitution, Not a Bible

Makes sense. They are, after all, taking an oath to support and defend the Constitution. Kudos to Rep. Kyrsten Sinema, who is religiously “unaffiliated.” Though, I can’t tell what kind of Constitution that is.


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Jan 8, 2013

To Justice Breyer, No One Pays Attention to Justice Scalia, but Everyone Listens to *JUSTICE* Posner

During oral argument in Descamps v. United States (11-9540), Justice Breyer willingly chided Justice Scalia while unwittingly elevating Judge Posner to the Supreme Court.

JUSTICE BREYER: No, no, no. But I mean, what I would do — I’ve said this and nobody pays any attention. I think Justice Scalia’s said it; nobody pays any attention. I think Justice Posner said it. He said: Look, under clause 2, these are really empirical questions, is this dangerous or not. Let’s do a little sampling and what we’ll do is we’ll sample the kinds of people that this particular State statute X get convicted under and where a whole lot of them are dangerous it’s a dangerous statute; and where not, not. And so nobody’s done that sampling, but we do have some numbers here and the numbers here suggest that this is really a burglary statute.

I’m sure Judge Posner wishes that he was at 1 First Street and not Justice Scalia.

H/T Jacob Berlove

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